2. The Defendants in error do not bring themselves within the registry act. The demise from Bartholomew Boyd Warburton was registered; but the assignment to the Plaintiff's does not appear to have been registered, and they must show a registered title in themselves. The registration acts do not interfere with the operation of deeds as between the parties; and registration is only necessary to prevent a subsequent sale, by some of the parties, to a person who might register. The Plaintiffs claiming by unregistered deed, cannot set that up against another unregistered deed. 3. The title of the Plaintiffs is only founded in equity. Bartholomew Boyd Warburton had only an equity. But, without resting on these points, we rely on the general question. Elizabeth Warburton had, in 1779, a vested interest in the term: and, on her marriage, the estate was conveyed by her father, tenant for life, and herself, to trustees. The whole term, therefore, passed out of Benjamin Batt and Elizabeth, his daughter, and was acquired by the trustees. It was not essential to register the deed as against Benjamin Batt and Elizabeth Warburton; but only, to guard against Benjamin Batt, Elizabeth Warburton, or both, conveying to a second purchaser. After Elizabeth Warburton married, she could not, during her coverture, commit any fraud by conveying again: and so far, registering was not necessary. Now, what interest except under the settlement did Bartholomew Boyd Warburton acquire by the marriage? Clearly none his 1832. WARBURTON บ. LOVELAND, 1832. WARBURTON v. LOVELAND. wife having no estate vested in her at the time of marriage, to give him any marital right in the term. How could the husband, then, acquire in his marital right a legal power to commit a fraud by a subsequent sale, so as to defeat the settlement? It is singular doctrine, that a man, having no estate, should be enabled to defeat the wife's conveyance before marriage, by a right in something she once had. Suppose, forty years before marriage, she had sold bona fide by an unregistered deed; could the husband, forty years after, defeat that sale by any act of his ? The clauses of the act of Parliament are inartificially framed; but the House cannot devest an estate, bona fide acquired, by any subtle construction of the act. This they would not do, unless they were compelled by very clear words. The fourth section gives to registered deeds priority. The fifth section makes unregistered deeds void against judgments. We have to consider, 1st. The meaning of the words "right, title, and interest," in the fourth section. 2d. Whether the fifth section is not in construction governed by the fourth. The words "right, title, and interest," cannot be taken literally; for then the subsequent purchaser could not take any thing. Lord Redesdale put the right construction upon the words in Latouche v. Dunsany*; but here the husband "It * 1 S. & L. 159. The passage in question is as follows: "must be understood to mean, according to the right, title, and "interest which such person had to make a conveyance, which "would have been good if such prior conveyance had not "existed." never had any estate, so the Defendants in error The Judges in the Court below, who were of opinion that the Plaintiff in error was entitled to the judgment, say that the right construction is, that the act applies to deeds executed by the same person. Under the English act, a purchaser from an heir, with registry, will oust an unregistered devisee. It is different in Ireland*: yet, under the construction of the Defendants in error, no person could take an estate. The Irish act did not intend to give a perfect title upon the register, otherwise they would have enforced the registry of wills. From the words and intention of the act, it appears that it applies only to cases of conveyance from the same person. It is said, that the fifth section is independent of the fourth; and, having no restriction, invalidates all deeds. The intention of the fifth section was, that as the third and fourth give priority to deeds according to registration, but omit judgments, the difficulty which might arise from such omission should be remedied, and it gives priority to judgments over unregistered deeds; that is, if there be an unregistered deed, and it be postponed by a registered deed, judgments also shall be let in against the unregistered deed, which cures the anomaly which would otherwise occur. The real argument of the Defendants in error * See the cases of devise and conveyance by the heir put in the judgment in the Court below, by Lord Plunkett. 1 Hudson and Brooke, 680, et seq. 1832. WARBURTON V. LOVELAND. 1832. WARBURTON v. LOVELAND. is, that words must be introduced to apply to an estate which a man might have had, if somebody else had not done an act. The cases on this act are, Jack d. Rennick v. Armstrong, and Fury v. Smith.* The point in the first case was determined in the same way in England that if A. conveys to B. by an unregistered deed, then to C. in the same way, and C. conveys by a registered deed to D., D.'s registered deed will not prevail over B.'s unregistered deed. In the second case, which is yet more material, a purchaser by a registered deed from the sheriff was held not to give priority over an unregistered deed.t The clear construction of the act is, that the fourth and fifth sections are to be read as one clause, the fifth only giving priority to judgments: that the act is to be construed according to Lord Redesdale's view, and not to be extended further. For the Defendants in error. The case in the Court below was argued upon the fourth and fifth sections of the registry act. Two new points are made in the argument here. The question is, whether if an assignment is made by an unmarried woman, and she afterwards marry, and then her husband assign, the registered deed of the husband will not defeat the unregistered deed of the wife. One new point is, whether non-registration of the common title is material. Where the title is See Appendix to 1. Hudson and Brooke. + See Hudson and Brooke in principal case, 677.711. & 717. common, the registration is immaterial. When they become distinct, it is material. In Jack v. Armstrong, registration was held necessary to give title. The special verdict finds nothing affirmatively or negatively as to the registration of the common title; and, in the absence of proof, nothing is to be inferred. As in case of an annuity deed; if the memorial is not stated in pleading, the objection must be brought forward by the party impeaching the deed. The deeds in conflict are those of 1779 and 1800; the first is unregistered, the second is registered. It is argued, that the interest of Warburton the husband was not legal, but equitable. This is true in one sense, but not applicable to the question. The question here is, what was his power to render the deed of 1779 inoperative. This depends upon the construction of the fourth and fifth sections of the registry act of Ireland, 6 Ann. c. 2. The principle of the law is laid down by Lord Redesdale, in Latouche v. Lord Dunsany*, as applied to the doctrine of tacking, that the registry was intended principally for the security of purchasers. The fourth section gives validity to registered deeds, according to priority of the time of registration. Doubts upon this question were first raised in Fury v. Smith; but that case hardly required the discussion of the point in question, and the opinion of Bushe C.J. in that case was extrajudicial. The section is supposed to apply to deeds executed by the same grantor. 1 S. & L. 157. 1832. WARBURTON v. LOVELAND. |